586 F.

2d 925
78-2 USTC P 13,266

ESTATE of Arthur K. WATSON, Ann Hemingway Watson,

Helen W.
Buckner, Ann C. H. Watson and Jane W. Watson, as
Executrices of the Will of Arthur K.
Watson, Deceased, Appellees,
v.
W. Michael BLUMENTHAL, as Secretary of the Treasury, and
Hubert J. Hintgen, as Commissioner of the Bureau
of the Public Debt, Appellants.
No. 9, Docket 78-6045.

United States Court of Appeals,

Second Circuit.
Argued Sept. 13, 1978.
Decided Oct. 30, 1978.

Naomi Reice Buchwald, Asst. U.S. Atty., New York City (Robert B.
Fiske, Jr., U.S. Atty., S. D. N. Y., William G. Ballaine and Louis G.
Corsi, Asst. U.S. Attys., New York City, of counsel), for appellants.
John R. Hupper, Cravath, Swaine & Moore, New York City (George J.
Gillespie, III, Christine Beshar and Andrew D. Postal, New York City, of
counsel), for appellees.
Before OAKES, GURFEIN and MESKILL, Circuit Judges.
OAKES, Circuit Judge:

This appeal, were there subject matter jurisdiction, would involve the very
interesting, if not altogether novel, question of the extent of agents' authority
under a general power of attorney after their principal becomes fatally comatose
as the result of a serious accident. However, in this suit against the Secretary of
the Treasury for declaratory and mandamus relief in connection with the

redemption of certain United States Treasury bonds, commonly known as

Flower Bonds, which plaintiffs seek to redeem at par for the payment of federal
estate taxes due from decedent Arthur K. Watson's estate, we find a lack of
subject matter jurisdiction in the district court. Accordingly, we reverse the
judgment of the United States District Court for the Southern District of New
York, Thomas P. Griesa, Judge, 442 F.Supp. 1000 (S.D.N.Y.1977), which held
that the Flower Bonds purchased for Arthur Watson's estate after his fatal fall
but before his death were the property of his estate and that redemption was
accordingly required but did not discuss the jurisdictional aspects of the case
other than to say that "(p)laintiffs are further entitled to a writ of mandamus
directing defendants to so redeem and apply the bonds," Id. at 1003, citing our
own Lovallo v. Froehlke, 468 F.2d 340 (2d Cir.), Cert. denied, 411 U.S. 918,
93 S.Ct. 1555, 36 L.Ed.2d 310 (1972).
FACTS
2

On July 18, 1974, former Ambassador Arthur Watson fell down the stairs at
his home in New Canaan, Connecticut, sustaining a laceration of the brain and
fractured skull. No curative treatment was or could have been given to him; he
remained comatose until his death eight days later. The day after the fall his
brother and a member of the law firm of Cravath, Swaine & Moore, acting
pursuant to a May 1, 1970, power of attorney, purchased $5 million worth of
Treasury bonds, commonly called Flower Bonds, and three days later made a
second bond purchase in the face amount of $3 million.

Treasury bonds in general and Flower Bonds in particular are issued under the
authority given Congress in Article I, Section 8, Clause 2, of the Constitution
"to borrow Money on the credit of the United States." Flower Bonds derive
from the Second Liberty Bond Act, 31 U.S.C. 752, and more particularly
Section 20 of the Act, 31 U.S.C. 754b, which was amended, 56 Stat. 189
(1942), so as to permit "under such regulations and upon such terms and
conditions as the Commissioner of Internal Revenue with the approval of the
Secretary of the Treasury may prescribe (bonds to) be receivable by the United
States in payment of . . . taxes."1 Regulations were adopted to permit certain
bonds issues to be redeemed at par for purposes of paying federal estate tax.
These issues are called Flower Bonds because in effect they bloom at the time
of the death of the owner, prior to which, particularly because they bear low
interest, they sell at a substantial discount on the open market. The Treasury
Department could not issue Flower Bonds after March 3, 1971, because of a
statutory repeal, 31 U.S.C. 757c-4, but a number of issues made in the 1940s
and '50s with maturity dates in the 1970s, '80s and '90s are outstanding,
purchasable on the open market and ready to "bloom" upon the owner's death.

In connection with each issue here involved,2 the Treasury's Bureau of the
Public Debt issued "offering circulars" that set forth the conditions for the
redemption of the bonds. Although the language of each of the offering
circulars varies somewhat, they all require ownership or actual ownership by
the decedent at the time of his death. The circulars incorporate the regulations
now appearing at 31 C.F.R. 306.28, which also set forth, Subparagraph (b), 3
as the requirements for redemption of bonds under this section that (1) the
decedent must have owned the bonds at the time of his death, and (2) the bonds
must constitute a part of his estate.
4

Following Mr. Watson's death, his estate ratified the purchase by his attorneysin-fact and tendered to the Bureau of the Public Debt, for application to federal
estate tax due, bonds in the face amount of $4,742,000 for redemption at par
and accrued interest in accordance with their terms. But the Bureau rejected the
tender because it felt that under general rules of agency law, Mr. Watson's
comatose condition at the time of the bond purchase vitiated the power of his
attorneys-in-fact to act for him. The estate and the executrices thereof brought
this suit against the Secretary of the Treasury and the Commissioner of the
Bureau of Public Debt seeking declaratory relief and an order directing the
Government to redeem the bonds at par and apply them with accrued interest in
satisfaction of estate taxes due. Plaintiffs allege jurisdiction under 28 U.S.C.
1331 (federal question), 1361 (mandamus), 1391(e) (relating to venue in civil
actions against United States agencies or employees), and 2201 (Declaratory
Judgment Act). Because 1391(e) is, as indicated, a venue statute and does not
in and of itself confer subject matter jurisdiction and 2201 does not provide an
independent basis for jurisdiction but simply increases the remedies available
to a litigant, Skelly Oil Co. v. Phillips Petroleum Co., 339 U.S. 667, 70 S.Ct.
876, 94 L.Ed. 1194 (1950); Delavigne v. Delavigne, 530 F.2d 598 (4th Cir.
1976), we need not discuss those sections further.

FEDERAL QUESTION JURISDICTION

5

Jurisdiction lies under 1331,4 since 19765 without regard to the amount in
controversy, against the United States, any agency thereof, or any officer or
employee thereof in his official capacity, if the action "arises under the
Constitution, laws, or treaties of the United States." However, under Section 1
of the Tucker Act, 28 U.S.C. 1491,6 the Court of Claims has jurisdiction "to
render judgment upon any claim against the United States founded either upon
the Constitution, or any act of Congress, or any regulation of an executive
department, or upon any express or implied contract with the United States."
Under 1346(a)(2), also a part of the Tucker Act, the district courts have
original jurisdiction concurrent with the Court of Claims of actions similarly

founded only if they do not exceed $10,000 in amount.7 For contract actions
against the United States the Court of Claims has exclusive jurisdiction for
claims over $10,000. See International Engineering Co., Division of A-T-O,
Inc. v. Richardson, 167 U.S.App.D.C. 396, 512 F.2d 573, 577 (1975), Cert.
denied, 423 U.S. 1048, 96 S.Ct. 774, 46 L.Ed.2d 636 (1976); 17 C. Wright, A.
Miller & E. Cooper, Federal Practice and Procedure 4101, at 210 (hereinafter
cited as Wright). Thus, simplistically viewed, our question in the first instance
would be whether the present complaint is "founded upon" a contract, in which
case only the Court of Claims would have jurisdiction because the amount in
controversy far exceeds $10,000, or is one "arising under" an Act of Congress
(the Second Liberty Bond Act) or a regulation of an executive department (the
regulations above mentioned, 31 C.F.R. 306.28) within the meaning of
1331. The Government contends strongly for the contract position, the estate
for what we may call the "arising under" position.
6

As so often occurs in such matters, the characterization of the claim as one

founded upon a contract or arising under a law or regulation of the United
States, although determinative of the outcome, is a question by no means
simple of solution. Judge Gignoux has suggested in a similar case in the District
of Maine that a plaintiff would have difficulty meeting the "arising under"
requirement of 1331 because the suit arises "primarily under a contract and
not directly under the laws of the United States." Estate of Pingree v.
Blumenthal, No. Civ-77-3-ND at n. 5 (D.Me. Mar. 3, 1978). As District Judge
Albert Johnson said in United States v. Dauphin Deposit Trust Co., 50 F.Supp.
73, 76 (M.D.Pa.1943), in connection with savings bonds under the Second
Liberty Bond Act, "(e)ach of said bonds, together with the Statutes, Treasury
Regulations, and Circulars constitute a valid and binding contract determining
the rights of the parties therein and . . . ownership and title to the said bonds are
controlled by Section 22 of the Second Liberty Bond Act, as amended, and the
aforesaid Treasury Regulations and Circulars"; he accepted the Government's
contention that "the (federal) Regulations must be read into the contract
between the United States and (the bond purchaser) so as to become a part
thereof." See Bodek v. Department of the Treasury, Bureau of the Public Debt,
532 F.2d 277, 279 n. 7 (2d Cir.), Cert. denied, 429 U.S. 849, 97 S.Ct. 137, 50
L.Ed.2d 122 (1976); Wolak v. United States, 366 F.Supp. 1106, 1111-12
(D.Conn.1973); Spicer v. United States, 217 F.Supp. 44 (D.Kan.1963), Aff'd,
332 F.2d 750 (10th Cir. 1964). See also Clearfield Trust Co. v. United States,
318 U.S. 363, 63 S.Ct. 573, 87 L.Ed. 838 (1943) (federal common law applies
in actions on contracts with the United States). Thus although this case has
some aspects of a suit arising under a federal law or executive department
regulation, the bonds are themselves contracts, and the regulations are
incorporated into those contracts; accordingly, one may view the claim as

essentially being "founded upon a contract" and hence a matter exclusively for
the Court of Claims. Our decision that because of the contract aspects of this
case the Tucker Act assigns jurisdiction to the Court of Claims and not the
district court is reinforced by the Court of Claims' authority even over cases
founded upon an Act of Congress or a regulation. Thus the Court of Claims has
jurisdiction over this action whichever way it is characterized, and that
jurisdiction is on these facts exclusive.
7

However, as we have said, this analysis may be simplistic if it involves simply

an attempt to pigeonhole the case under one label ("arising under") or another
(contract) in the hope that the pigeonholing itself will solve the problem.
Fortunately or unfortunately, as the case may be, the law pertaining to federal
jurisdiction in the area of suits against the United States upon United States
obligations does not consist simply of convenient pigeonholes. See generally
Cohen, The Broken Compass: The Requirement That a Case Arise "Directly
Under Federal Law," 115 U.Pa.L.Rev. 890 (1967).

A more sophisticated analysis must also take into account the matter of
sovereign immunity. The Tucker Act itself, after all, was a waiver of sovereign
immunity for actions founded upon contract. See United States v. Sherwood,
312 U.S. 584, 586-87, 61 S.Ct. 767, 85 L.Ed. 1058 (1941); See also Glidden
Co. v. Zdanok, 370 U.S. 530, 556-57, 564, 565, 82 S.Ct. 1459, 8 L.Ed.2d 671
(1962). A suit as here seeking specific relief against an officer of the sovereign
acting not in any individual capacity but strictly as an official is a suit against
the sovereign and absent a waiver of immunity is not maintainable because of
the absence of subject matter jurisdiction. See Larson v. Domestic & Foreign
Commerce Corp., 337 U.S. 682, 688, 69 S.Ct. 1457, 93 L.Ed. 1628 (1949). As
Larson put it, following Goldberg v. Daniels, 231 U.S. 218, 34 S.Ct. 84, 58
L.Ed. 191 (1913), and rejecting the theory of Goltra v. Weeks, 271 U.S. 536,
46 S.Ct. 613, 70 L.Ed. 1074 (1926):

9
(T)he
action of an officer of the sovereign (be it holding, taking or otherwise legally
affecting the plaintiff's property) can be regarded as so "illegal" as to permit a suit
for specific relief against the officer as an individual only if it is not within the
officer's statutory powers or, if within those powers, only if the powers, or their
exercise in the particular case, are constitutionally void.
10

Id. at 701-02, 69 S.Ct. at 1467 (footnote omitted). In Larson, the Court

distinguished suits for damages, where it would give "hospitable scope" to
broadening the sovereign's liability, from suits for specific relief such as an
injunction, a writ of mandamus, or a declaration. Id. at 703-04, 69 S.Ct. 1457.
The latter involve "direct judicial interference," Id., with functions of Congress

and the executive branch. Judge Gignoux, in his very thoughtful opinion above
mentioned, Estate of Pingree v. Blumenthal, recognized, applied, and held
controlling the principles of Larson. See also Dugan v. Rank, 372 U.S. 609,
620, 83 S.Ct. 999, 10 L.Ed.2d 15 (1963). As Judge Gignoux said,
11 the very least the declaratory and injunctive relief sought would "operate
(a)t
against" the United States. The redemption of the Flower Bonds tendered by
plaintiff in the application of the proceeds in payment of estate taxes would "compel
(the Government) to act" in a particular manner, and early redemption of the bonds
at face value undeniably "would expend itself on the public treasury."8
12

He pointed out that 1331, under which the plaintiff in Pingree asserted
jurisdiction, is not a general waiver of immunity, E. g., Beale v. Blount, 461
F.2d 1133, 1138 (5th Cir. 1972), and thus found a similar Flower Bond action
to be "an unconsented suit against the sovereign."

13

Appellees do not challenge Judge Gignoux's decision on the issue of sovereign

immunity, but they argue, evidently for the first time in their brief on this
appeal, that the 1976 amendments to the Administrative Procedure Act (APA),
5 U.S.C. 701, as amended by Pub.L.No.94-574, 90 Stat. 2721 (1976),9
operate to confer subject matter jurisdiction upon the district court. In this
regard the estate particularly relies on the amendment to 5 U.S.C. 702 which
provides in part that:

14 action in a court of the United States seeking relief other than money damages
An
and stating a claim that an agency or an officer or employee thereof acted or failed to
act in an official capacity or under color of legal authority shall not be dismissed nor
relief therein be denied on the ground that it is against the United States or that the
United States is an indispensable party.
15

Appellees rely extensively upon the House Report on the 1976 amendments 10
and particularly on the portion thereof that indicates that the recent special
regulatory statutes authorizing federal review "do not cover many of the
functions performed by the older executive departments, such as the
Departments of State, Defense, Treasury, Justice, Interior, and Agriculture,"11
and also upon a quotation from Dean Cramton of Cornell Law School on whom
the Congress relied in adopting the 1976 amendments:

16 problem is that judges who are not familiar with the history of the fiction and its
The
purpose attempt to make determinations whether the suit is actually directed at the
Government rather than the named defendant. This practice in turn raises a number
of complex questions involving the relationship between the official and his

employer the Government. If it is found that the Government is the actual defendant,
and there is no specific statute authorizing judicial review, the suit is dismissed on
the basis of sovereign immunity.12
17

Thus, appellees argue, Dugan v. Rank, supra, Larson v. Domestic & Foreign
Commerce Corp., supra, as well as Hawaii v. Gordon, 373 U.S. 57, 83 S.Ct.
1052, 10 L.Ed.2d 191 (1963), all relied on in Judge Gignoux's opinion, no
longer represent the law. Appellees maintain that the holding in Califano v.
Sanders, 430 U.S. 99, 104-07, 97 S.Ct. 980, 51 L.Ed.2d 192 (1977), that
Section 10 of the Administrative Procedure Act is not a grant of jurisdiction,
does not matter because the same 1976 amendments did constitute a
jurisdictional grant in 28 U.S.C. 1331 "except to the extent that some specific
statute precludes review."13 See, e. g., Stickelman v. United States, 563 F.2d
413, 415 n. 2 (9th Cir. 1977); Texas Acorn v. Texas Area 5 Health Systems
Agency, Inc., 559 F.2d 1019, 1022 n. 5 (5th Cir. 1977). We are also referred to
Hill v. United States, 571 F.2d 1098, 1102 (9th Cir. 1978), as holding that
sovereign immunity is not a defense to an action brought prior to October 21,
1976, because the courts should decide cases based on the law at the time of
decision.

18

A leading commentator has also made us aware that a "particular source of

confusion" may turn out to be the relationship between the Tucker Act and the
1976 amendments above referred to. See Wright, Supra, 4101, at 210. As the
commentator indicates, "difficult problems undoubtedly will arise in trying to
draw a line between actions that basically are contractual disputes and those
seeking to rectify alleged official misbehavior." In this connection we are
warned "to be careful not to subvert the congressional objectives underlying the
enactment of the judicial review statute by allowing the Government to give an
overly expansive scope to the notion of claims 'founded upon' contract." Id. at
210-11. But again, we seek to avoid deciding this case merely through the
process of pinning on a label of either "contractual dispute" or "official
misbehavior." We must carefully examine the effect of the 1976 amendments
on the APA, 1331, and the Tucker Act, mindful that in this case, as in
Pingree, both sovereign immunity and the Tucker Act restrict the district court's
jurisdiction under 1331.

19

There are two answers to appellee's contention that the 1976 amendments to the
APA require a result in this case different from Pingree. One possibility is that,
notwithstanding the waiver of the defense of sovereign immunity in actions
brought under the APA, the amendments do not affect the defense of sovereign
immunity under 1331. The second answer is that whatever effect the
amendments may have had on sovereign immunity, they did not affect the

further limitation on jurisdiction under 1331 that the Tucker Act imposes.
20

First, we note that an action under 1331 seeking nonstatutory review of

agency action is distinct from an action under the APA. See the separate
discussion of nonstatutory 1331 actions in the House Report at 13-17, (1976)
U.S.Code Cong. & Admin.News, pp. 6133-37. It is true that the same bill
amended both the APA and 1331, but it amended them in different ways and
with different effects. Under the APA, the defense of sovereign immunity is no
longer a bar to an action in which the plaintiff seeks relief other than money
damages; under 1331, failure to meet the jurisdictional amount is no longer a
bar to an action against the United States, a federal agency, or a federal officer
or employee in his official capacity.

21

We also note what the amendments did not do: they did not remove the defense
of sovereign immunity in actions under 1331. Not only does the language of
the amendment to 1331 fail to suggest any effect on sovereign immunity, but
the House Report states the effect of the amendments on sovereign immunity in
terms of 702:

22 bill would provide for abolishment of the defense of sovereign immunity in

(T)he
certain actions against the United States. More specifically, it would add to section
702 a provision that an action in a court of the United States seeking relief other than
money damages and stating a claim that an agency or an officer or employee thereof
acted or failed to act in an official capacity or under color of legal authority shall not
be dismissed nor relief therein be denied on the ground that it is against the United
States or that the United States is an indispensable party. It would also provide that
the United States may be named as a defendant in any such action, and a judgment
or decree may be entered against the United States.
23

The law applicable to this case after the amendments thus can be summarized
as follows: there is no subject matter jurisdiction under the APA because the
Act itself is not a grant of jurisdiction, Califano v. Sanders, 430 U.S. at 105, 97
S.Ct. 980, and the amendments also do not provide for jurisdiction but only
make it clear that sovereign immunity will not be a defense in actions in which
jurisdiction does exist; there is also no jurisdiction under 1331 because of
sovereign immunity, a defense that the amendments did not affect. Just as prior
to the amendments to 1331 the absence of a jurisdictional amount under the
APA did not negate the requirement of a minimum amount in controversy in
actions under 1331, now the waiver of sovereign immunity under the APA
does not affect the limitation of the sovereign immunity defense on jurisdiction
under 1331.

24

Alternatively, we note that whatever the effect on the defense of sovereign

immunity under 1331, the amendments did not affect the further limitation on
1331 jurisdiction imposed by the Tucker Act's grant to the Court of Claims of
exclusive jurisdiction in cases founded upon contracts, including those that
involve federal laws or regulations. We recognize that the status of sovereign
immunity under 1331 is not entirely clear because of the broad language in
places in both Califano v. Sanders, supra, and the House Report. But this broad
language must be read in context; and in this case, that requires a further
examination of the role of the Tucker Act. For although the Court in Sanders
did say that the "obvious effect" of the amendment to 1331 is "to confer
jurisdiction on federal courts to review agency action," 430 U.S. at 105, 97
S.Ct. at 984, sovereign immunity was not an issue in Sanders ; and to the extent
that the Court discussed the relationship between 1331 and the APA, the
discussion was limited to the inference that could be drawn from the
elimination of the jurisdictional amount under 1331 in actions against federal
agencies or officials. We note that appellees would more than satisfy the
jurisdictional amount even if one were required, so, at least in this regard, the
amendment to 1331 does not affect them. Moreover, the Court noted that the
amendment's effect was limited by a proviso that the conferring of jurisdiction
was "subject . . . to preclusion of review statutes created or retained by
Congress." Id. Similarly, the broad language in the House Report about the
abolition of sovereign immunity is well tempered by subsequent disclaimers of
any effect on other existing limitations on the court's power to grant relief,
including an exclusive alternative remedy. The legislative history of the 1976
amendments as well as the amendments to 703 and 704 of the APA
strengthens this interpretation in light of the already precarious balance between
the APA and the Tucker Act. Thus the 1976 amendments have no effect on our
conclusion above that the Court of Claims and not the district court had
jurisdiction. The Court of Claims had jurisdiction under prior law, and it still
has jurisdiction.

25

As the commentator above cited notes, See Wright, Supra, 4101, at 210, the
legislative history makes it clear that the amendments do not affect the existing
limitation of the Tucker Act on cases brought under the APA notwithstanding
the waiver of sovereign immunity. In the words of the House Report,

26 (Court of Claims Act) is intended to foreclose specific performance of

The
government contracts. In the terms of the proviso, a statute granting consent to suit,
I. e., the Tucker Act, "impliedly forbids" relief other than the remedy provided by
the Act. Thus, the partial abolition of sovereign immunity brought about by this bill
does not change existing limitations on specific relief, if any, derived from statutes
dealing with such matters as government contracts, as well as patent infringement,

tort claims, and tax claims.

27

H.Rep. at 13, (1976) U.S.Code Cong. & Admin.News, 94th Cong., 2d Sess., at
6133. The proviso in question is the third new sentence that the 1976
amendments added to 702: "Nothing herein . . . confers authority to grant
relief if any other statute that grants consent to suit expressly or impliedly
forbids the relief which is sought."14 This clause of the proviso is said to
provide for specific relief in the face of another statute granting consent to sue
with respect to a particular subject matter "only if Congress has not intended
that provision for relief to be exclusive." H.Rep. at 13, (1976) U.S.Code Cong.
& Admin.News, p. 6133. Similarly, this proviso, although not withdrawing
specific relief in a situation in which it is now available, "merely provides that
new authority to grant specific relief is not conferred when Congress has dealt
in particularity with a claim and intended a specified remedy to be the exclusive
remedy." Id.

28

We are thus left with the propositions that the APA is not itself to be interpreted
as an implied grant of subject matter jurisdiction to review agency actions,
Califano v. Sanders, 430 U.S. at 105, 97 S.Ct. 980, and that because the
amendments explicitly exclude cases in which monetary damages are involved,
they do not affect the jurisdictional scheme under the Tucker Act. And to the
extent that the Tucker Act impliedly forbids relief other than the remedy
provided by the Act, viz., the specific relief sought here, that Act remains
unaffected by virtue of Clause 2 of the proviso added to 702 by the third new
sentence.

29

Moreover, the amendments to 703 and 704 reinforce these conclusions. The
language of 703, by requiring judicial review to proceed "in a court specified
by statute" or "in a court of competent jurisdiction," suggests that Congress did
not intend 702 to be an independent fount of jurisdiction. Califano v. Sanders,
supra, 430 U.S. at 106 n. 6, 97 S.Ct. 980. Section 703 also excepts from judicial
review agency action for which and to the extent that "prior, adequate and
exclusive opportunity for judicial review is provided by law . . . ." Similarly,
the first sentence of 704 provides that "(a)gency action made reviewable by
statute and final agency action for which There is no other adequate remedy in
a court are subject to judicial review" (emphasis added). Arguably, therefore,
only if a suit in the Court of Claims under its jurisdiction, 1491, were
inadequate would an action lie under the APA. Again, it is the interrelationship
between the Tucker Act and APA that controls.

30

Appellees argue that suit in the Court of Claims would be inadequate because
the only way that they could reduce their claim to one for damages would be to

sell the bonds, but the sale would deprive them of an action to settle the issue of
ownership. Moreover, they argue that the Court of Claims cannot provide an
adequate remedy because it cannot grant declaratory or injunctive relief. See
Richardson v. Morris, 409 U.S. 464, 465-66, 93 S.Ct. 629, 34 L.Ed.2d 647
(1973). But a Court of Claims remedy is "an adequate remedy in a court" within
the meaning of 5 U.S.C. 703, 704, thus precluding APA review. Alabama
Rural Fire Insurance Co. v. Naylor, 530 F.2d 1221 (5th Cir. 1976). In Alabama
Rural, the gravamen of the complaint was breach of contract against the
government. The court recognized that if it held in a suit for specific
performance and not for money damages that the district court had jurisdiction
under the APA to exercise equitable powers to compel the United States to
perform a contract, the jurisdiction of the Court of Claims would be destroyed
by implication. Id. at 1229-30. The court held that the Tucker Act was an
adequate remedy, noting that the Court of Claims was "able without undue
difficulty, assuming it decides that the rescission was wrongful, to determine
the costs incurred by Alabama Rural in anticipation of the performance of the
contract . . . and its other damages occasioned by the breach of the contract." Id.
at 1230. Here, similarly, the estate has tendered its bonds and had its tender
refused; thus the contract breach, if there were any, has already taken place. An
action is maintainable in the Court of Claims for money damages that the estate
has sustained by the Government's alleged breach. Were we to decide
otherwise we would be destroying the jurisdiction of the Court of Claims. See
also International Engineering Co. v. Richardson, supra, 512 F.2d at 580-81
(suit for declaratory and injunctive relief not maintainable where damages were
available in Court of Claims).
31

Although these decisions predate the 1976 amendments to 28 U.S.C. 1331

and to the APA, their rationale is still fully applicable because the APA prior to
the amendments surely was a waiver of sovereign immunity in cases to which it
applied; and as previously stated the 1976 amendments did not affect the
Tucker Act. See also Ove Gustavsson Contracting Co. v. Floete, 278 F.2d 912
(2d Cir.), Cert. denied, 364 U.S. 894, 81 S.Ct. 225, 5 L.Ed.2d 188 (1960)
(complaint seeking declaration that contract with GSA was still in effect
insufficient because Tucker Act provided adequate relief in Court of Claims).

MANDAMUS
32

The mandamus jurisdiction, 28 U.S.C. 1361, is intricate, if not mazelike, See

Century Arms, Inc. v. Kennedy, 323 F.Supp. 1002 (D.Vt.), Aff'd per curiam,
449 F.2d 1306 (1971), Cert. denied, 405 U.S. 1065, 92 S.Ct. 1494, 31 L.Ed.2d
794 (1972), what Kenneth Culp Davis has colorfully called "mandamus
medievalism," Administrative Law of the Seventies 543 (1976), but fortunately

it is unnecessary for us to explore the technicalities or find our way through the
maze here. The mandamus statute is simply not a general waiver of the
sovereign's immunity. White v. Administrator, 343 F.2d 444 (9th Cir. 1965);
See Larson v. Domestic & Foreign Commerce Corp.,supra. It is, as Judge
Gignoux pointed out in his opinion, Estate of Pingree v. Blumenthal, supra,
"firmly established" that the mandamus statute does not alter "traditional
concepts of the doctrine of sovereign immunity" and "makes no change in the
substantive law of mandamus." E. g., Carter v. Seamans,411 F.2d 767, 773 (5th
Cir. 1969), Cert. denied, 397 U.S. 941, 90 S.Ct. 953, 25 L.Ed.2d 121 (1970).
As it was succinctly put by a Massachusetts district judge, "(c) ertainly,
Congress never intended 1361 to be interpreted so as to allow the
extraordinary writ of mandamus to be converted into a device for obtaining
piece-meal solution of contractual disputes to which the United States is a
party." Massachusetts v. Connor, 248 F.Supp. 656, 660 (D.Mass.1965), Aff'd
per curiam, 366 F.2d 778 (1st Cir. 1966). What we have said, then, with respect
to federal question jurisdiction is equally applicable to mandamus jurisdiction;
neither supports the appellees in this case. Lovallo v. Froehlke, supra, which
the district court relied upon, relates to the substantive law of mandamus and, if
anything, furnishes additional grounds for denying the writ on the merits if we
had to reach them as Judge Gignoux's opinion in Pingree, supra, points out; but
because we need not reach the merits we do not.
33

Judgment reversed; cause remanded with directions to the district court to

dismiss the complaint on the ground of lack of subject matter jurisdiction.

Pub.L.No.86-346, 105(b)(1), 73 Stat. 622 (1959), repealed 31 U.S.C.

754(b), but the repeal does not affect the bonds at issue in this case

The agents for the decedent purchased bonds of five different series with
interest rates ranging from 3% To 41/8% And maturing between 1978 and 1994

31 C.F.R. 306.28(b) provides:

Conditions. The bonds presented for redemption under this section must have
(1) been owned by the decedent at the time of his death and (2) thereupon
constituted part of his estate . . . .

Prior to its amendment in 1976 by Pub.L.No.94-574, 2, 90 Stat. 2721 (1976),

28 U.S.C. 1331 provided:
The district courts shall have original jurisdiction of all civil actions wherein
the matter in controversy exceeds the sum or value of $10,000, exclusive of

interest and costs, and arises under the Constitution, laws, or treaties of the
United States.
5

28 U.S.C. 1331 now provides:

The district courts shall have original jurisdiction of all civil actions wherein
the matter in controversy exceeds the sum or value of $10,000, exclusive of
interest and costs, and arises under the Constitution, laws, or treaties of the
United States except that no such sum or value shall be required in any such
action brought against the United States, any agency thereof, or any officer or
employee thereof in his official capacity.

28 U.S.C. 1491 provides in pertinent part:

The Court of Claims shall have jurisdiction to render judgment upon any claim
against the United States founded either upon the Constitution, or any Act of
Congress, or any regulation of an executive department, or upon any express or
implied contract with the United States, or for liquidated or unliquidated
damages in cases not sounding in tort.

28 U.S.C. 1346(a) provides in pertinent part:

The district courts shall have original jurisdiction, concurrent with the Court of
Claims, of:
(2) Any other civil action or claim against the United States, not exceeding
$10,000 in amount, founded either upon the Constitution, or any Act of
Congress, or any regulation of an executive department, or upon any express or
implied contract with the United States, or for liquidated or unliquidated
damages in cases not sounding in tort.

Judge Gignoux's quotations refer to Hawaii v. Gordon, 373 U.S. 57, 58, 83
S.Ct. 1052, 10 L.Ed.2d 191 (1963) ("The general rule is that relief sought
nominally against an officer is in fact against the sovereign if the decree would
operate against the latter. E. g., Dugan v. Rank, 372 U.S. 609, 83 S.Ct. 999, 10
L.Ed.2d 15 (1963); Malone v. Bowdoin, 369 U.S. 643, 82 S.Ct. 980, 8 L.Ed.2d
168 (1962); Larson v. Domestic & Foreign Corp., 337 U.S. 682, 69 S.Ct. 1457,
93 L.Ed. 1628 (1949)."), and Dugan v. Rank, 372 U.S. 609, 620, 83 S.Ct. 999,
10 L.Ed.2d 15 (1963) ("The general rule is that a suit is against the sovereign if
'the judgment sought would expend itself on the public treasury or domain, or
interfere with the public administration,' Land v. Dollar, 330 U.S. 731, 738, 67
S.Ct. 1009, 91 L.Ed. 1209 (1947), or if the effect of the judgment would be 'to
restrain the Government from acting, or to compel it to act.' Larson v. Domestic
& Foreign Corp., (337 U.S.) at 704, 69 S.Ct. 1457; Ex parte New York, 256

U.S. 490, 502, 41 S.Ct. 588, 65 L.Ed. 1057 (1921).")

9

This same Act also amended 28 U.S.C. 1331. See notes 4-5 and
accompanying text Supra

10

H.R.Rep.No.94-1656, 94th Cong., 2d Sess., Reprinted in (1976) U.S.Code

Cong. & Admin.News, p. 6121 (hereinafter H.Rep.)

11

Id. at 5, (1976) U.S.Code Cong. & Admin.News at 6125

12

Id., (1976) U.S.Code Cong. & Admin.News at 6125-26

13

The quoted language is from Stickelman v. United States, 563 F.2d 413, 415 n.
2 (9th Cir. 1977), and it refers to one of the most important exceptions to
reviewability under the Administrative Procedure Act. 5 U.S.C. 701(a)(1)
provides that "(t)his chapter applies . . . except to the extent that (1) statutes
preclude judicial review."

14

The House Report explicitly discusses the relationship between the removal of
the defense of sovereign immunity and the other traditional limitations on
judicial relief:
In considering these recommended additions, it is important to note that the
amended section 702 would specifically provide that it would not affect other
limitations on judicial review or the power or duty of the court to dismiss any
action or deny relief on any other appropriate legal or equitable ground.
Further, section 702 clearly would specify that it does not confer authority to
grant relief if any other statute granting consent to suit expressly or impliedly
forbids the relief which is sought.
H.Rep. at 2, (1976) U.S.Code Cong. & Admin.News, p. 6122. Over and over,
the House Report emphasizes that the relationship existing between the APA
and other doctrines of reviewability other than sovereign immunity is
unchanged. See, e. g., H.Rep. at 12, (1976) U.S.Code Cong. & Admin.News,
pp. 6132-33: "S. 800 is not intended to affect or change defenses other than
sovereign immunity. . . . (T)he amendment to 5 U.S.C. section 702 is not
intended to permit suit in circumstances where statutes forbid or limit the relief
sought."